Page:Harvard Law Review Volume 9.djvu/134

106 I06 HARVARD LAW REVIEW. THE RISK OF LOSS AFTER AN EXECUTORY CONTRACT OF SALE IN THE COMMON LAW. IN the English and American law of sales of personal property- there is curiously little discussion in regard to the risk of property before transfer of title. It was assumed without dis- cussion that the maxim res perit domino was of universal applica- tion/ and this bare assertion has sufficed to fix the law.^ In the absence of agreement to the contrary, the risk is with the seller, though the property be identified, till the moment when title is transferred. If the property is destroyed or injured before that time, the buyer cannot be compelled to pay the price,^ and if he has paid the price in advance, it may be recovered.* It is well un- derstood, however, that the parties may, by special agreement, fix 1 It is curious that this maxim of the Roman law should be quoted in our law chiefly in a class of cases to which it did not apply in the Roman law. 2 In Noy's Maxims, c. xlii. it is said : " If I sell my horse for money, I may keep him until I am paid, but I cannot have an action of debt until he be delivered, yet the property of the horse is by the bargain in the bargainee or buyer ; . . . and if the horse die in my stable between the bargain and the delivery, I may have an action of debt for my money, because by the bargain the property was in the buyer.''^ It will be observed that the case here supposed is a sale with a lien for the price. As the dependency of mutual promises in any executory bilateral contract was little understood before the present century, and the question whether impossibility is so far an excuse for non-per- formance of a dependent promise, that the counter promise must nevertheless be per- formed, has been settled still more recently, it is obvious that only modern decisions have much value in this discussion. In Rugg v. Minett, ii East, 210, it was taken for granted that risk attends title, and the only discussion related to the question whether title had in fact passed. So clear is the law that it is hardly formally stated by so acute a writer as Benjamin. The only statement he makes is a casual one, without citation of authorities, in § 308. 3 Calcutta Co. v. De Mattos, 32 L. J. Q. B. 322, 335; Tillson v. United States, 129 U. S. 10 [ ; Hays v. Pittsburgh Packet Co., 33 P'ed. Rep. 552 ; Jones v. Pearce, 25 Ark. 545; Crawford v. Smith, 7 Dana, 59; Brown v. Childs, 2 Duv. 314; Lingham v. Eggleston, 27 Mich. 324; Hahn z/. Fredericks, 30 Mich. 223; Wilkinson v. Holiday, 33 Mich. 386; Slade v. Lee, 94 Mich. 127; Drews v. Ann River Logging Co., 53 Minn. 199; Fairbanks v. Richardson Drug Co., 42 Mo. App. 262 ; Towne v. Davis (N. H.), 22 At. Rep. 450; Terry v. Wheeler, 25 N. Y. 520; Kein v. Tupper, 52 N. Y. 550. Adams, 8 N. Y. 291 ; Williams v. Allen, 10 Humph. 337. The citations in this and the preceding note might easily be increased.
 * Logan V. Le Mesurier, 6 Moo. P. C. 116; Stone v. Waite, 88 Ala. 599; Joyce v.